>>> COULD move from price and quality to 'who has the best patent lawyer'?

>> What COULD? How about we accept the reality it's already happened?

> It's only happened to a small extent - if patent trolls are protected you can write off the USA as a source for innovation, period.

Sorry, I must disagree. It has not happened to a small extent. It's pervasive throughout all of the US legal system, when combined with bullying by rich corporations. Actually, some victims would rather pay for dubious patents than risk losing lots of money in a legal victory.

It's not just some magical powers that make China advance so fast; entrepreneurs are freer to try new things. Everybody says China only copies the West -- and surely it happens, sometimes very faithfully even -- but they're also experimenting with several innovations in design alone. They have still a lot of things to learn about customer satisfaction, but they succeeded in having a faster innovation cycle.

OTOH, the USA is becoming more and more trapped in legal bureaucracy. And it's not unintentional.

Really? How many times are you going to spend years of your life creating something awesome... only to have someone else like Facebook or Zynga copy it, market it, and put you out of business?

I doubt you've looked past your own selfishness and actually seen the big picture, so its probably a good idea for you not to pretend to know what the authors of the constitution... which has nothing at all to say about patents, had in mind when they wrote it.

but you also said: "Really? How many times are you going to spend years of your life creating something awesome... only to have someone else like Facebook or Zynga copy it, market it, and put you out of business?"

Now, who is selfish? The person who wants information to be free or the person who wants to be the sole profiteer?

Facebook, Zynga, Apple, Google or whatever mega corporation you may think will take anything they want from you with or without patents. You may try and sue them, but you will likely lose and lose everything you have in the process.

Well, without the fetters of funding a ton of legal research to see if anything you are innovating is someone else's intellectual property, you're free to dedicate 100% of your resources to development. That's a pretty good start, right there.

i.e. You don't have to have a legal firm on retainer in the event someone sues you for the code you've written which detects proximity, velocity and direction of a non-contact finger swipe.

Also just stop and look at the insanity and stupidity of that logic... a system that makes people be willfully ignorant of the current state of the art. A system that wastes resources by encouraging people to create something that will ultimately because it infringes. A system where investors won't (if they are smart) touch you if you haven't done due diligence at some point to protect their investment... all the while knowing that no matter how hard you try chances are there is someone sitting out their just waiting for a target worthy of suing. How's that for stifling innovation??

I'm not saying patents would be 100% abolished, but the current system FAILS its intended purpose and is in need of a serious overall to avoid wasted resources, prevent submarine-ing, and generally stop ridiculously obvious patents in their tracks to the point of preventing them from being grants in the first place no less costing millions to fight.

I'll sum up with, if you are small entity and think the patent system is your friend... you have not been paying attention.

Firstly, being able to "stand on the shoulders of giants" is good for innovation. Patents often stop that, especially in a fast moving field like computing - having to wait for the patent to expire before you can build upon it is a problem. You may argue that someone who wants to build upon a patented technology should just licence it, but the licence fee may be out of the reach of many inventors. And that's assuming the patent owner is even interested in licensing it - they may well just tell you to bug

There are ways to fix that without throwing the whole thing out. You actually touch on it yourself: in a fast-moving field like computing, the lifetime of patents is far too long. By the time they expire the patent owner has either long-since gotten enough return on investment to justify the research and development, or they never will because the inherent value of the "invention" is low. The result is a field in which a lot of profitable lines of research move slower than they should, because when it only

Really? How many times are you going to spend years of your life creating something awesome... only to have someone else like Facebook or Zynga copy it, market it, and put you out of business?

Why not go ask Linus Torvalds what he thinks of them doing that? You see, I'm not a dumbass. I don't work for free. Artificial scarcity is stupid. I don't buy into the copyright and patent futures market. So, I ask for the money to do my work or research or create things UP FRONT, and I ask for enough to cover the work and the profit I need for it, then I "give it away for free" since the work has been paid for. If I want more money I DO MORE WORK. This is how the free and open source model works. This is how Mechanics work too. The benefits from the mechanic's labor are unbounded. Instead of putting a coin-slot on the steering wheel so they can benefit in perpetuity from the work they do once, they recognize folks will bypass the artificial restrictions and instead negotiate a price up front and you pay for the entity of the unbounded benefit their work provides. This is a proven model. This is how the Burger Joint works. This is how every labor market works, except "ideas" and "information".

The problem is that with a patent system in place the Artificial Scarcity can be leveraged to cheat the researcher. Instead of paying a fair price for the inventor or creator's labor the corporations cherry-pick among what becomes a success. It takes the same effort to discover a success as it does to rule a solution out. Many discoveries are found in unrelated research. X-Ray radiation was discovered by accident. Without patents to create artificial scarcity of otherwise unbounded and infinitely reproducible ideas and information we'd have a more stable market where people charge what the need for their labors instead of accept less pay up front and gamble their effort in the imaginary property futures market.

What, you think demand is going to disappear if patents do? No, the demand for innovation will still exist, and it will be met. Look at the fashion and automotive industries. They are not allowed copyrights or design patents, and yet they are very lucrative and innovative and sell primarily on design. It wasn't until the 80's that software could even be patented. Oh NO! Your assumptions are shattered! Now what? You could just ignore that we made it all the way past the dawn of the personal computer before greedy dipshits like you decided artificial scarcity is somehow required for anything but stifling progress?

OK, I'll give you that I don't know exactly what will happen if we ban all patents. However, I just gave you two or three examples of markets where patents were not required for innovation. So, if you're a rational minded person, then you've got to ask yourself: Where is the evidence that patents are promoting the sciences and useful arts? Where's the evidence that patents are not harmful? Where's the evidence that patents are beneficial?! THERE IS NONE. So if you're not insane then you'd think: Hey, wouldn't it be fucked-up to run the world's economy of innovation and creativity based on an untested and unproven hypothesis?! I'm going to go ahead and give you the benefit of the doubt. I'll assume you want to end "piracy", right? OK.

Assuming you're not an absolute moron, you now agree we should do the experiment and abolish all patents and find out if patents are beneficial. What if they're holding us back needlessly? What if they're very harmful? I'm pretty sure you'd at least like to try and find SOMETHING to support your stance before continuing to believe in baseless assumptions without any evidence? RIGHT?! You don't and won't have a leg to stand on otherwise. I mean we only have evidence for the null hypothesis: Patents are not necessary for innovation or profit. Now the burden of proof is to PROVE patents are MORE beneficial than not having them. I would put it to you that copyright should

You see, I'm not a dumbass. I don't work for free. Artificial scarcity is stupid.... I ask for the money to do my work or research or create things UP FRONT, and I ask for enough to cover the work and the profit I need for it, then I "give it away for free" since the work has been paid for.

You didn't come up with some brilliant system. You just shifted the onus on participating in a system you dislike to your employer.

The Congress shall have power... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

Really? How many times are you going to spend years of your life creating something awesome... only to have someone else like Facebook or Zynga copy it, market it, and put you out of business?

How many people, right now, are violating Facebook or Zynga patents by taking advantage of their massive design and usability budgets and just solving problems the same way that they solved them, a week later?

It works both ways, you know, and I'd propose that there are far more people in the 2nd camp than there are in the 1st.

I create software on a daily basis, for a variety of purposes. I've done work on some systems which have turned out to be very revolutionary and the concept of patenting them seldom came up - one employer, when I posed the question of IP, replied, "We're not an intellectual property company." Which effectively meant, it a competitor saw our system at work, copied it and patented it we'd probably be willing to pay them a license fee just to get off our backs - shocking, but probably the case.

As for Microsoft and Zynga, they're both standing on the shoulders of giants. If various methods of performing tasks within an operating system or performing collision detection and tallying scores existed, neither company would be around today - having been soundly thumped by Sperry, IBM, DEC, CDC, Activision, EA, etc.

Which effectively meant, it a competitor saw our system at work, copied it and patented it we'd probably be willing to pay them a license fee just to get off our backs

Prior art, surely?

You still have to hire a legal defense to plead Prior Art. Meanwhile, the plaintiff's attorney has already done enough research to tell them how much to hit you for licensing, if they don't want to outright kill you (with an injunction) but are happy to just bleed you to death, while they take the proceeds and fund more IP research to see whomever else they can bully - thus limiting competition - so they don't have to perform better service or offer a superior product. Quite contrary to the spirit of the patent clause in the Constitution, I assure you.

You can challenge it with the PTO. But that has next to nothing to do with the lawsuit they bring. The judge will assume you plea is going to fail and you will have to litigate things in front of a judge or in front of a jury.

Few manager/executive type people say things like this. Their choice is either keep it a trade secret or patent it... unless the stuff you're creating is not very important to the business. Most companies' existence is based on various secrets they possess.

Which effectively meant, it a competitor saw our system at work, copied it and patented it we'd probably be willing to pay them a license fee just to get off our backs - shocking, but probably the case.

Few manager/executive type people say things like this. Their choice is either keep it a trade secret or patent it... unless the stuff you're creating is not very important to the business. Most companies' existence is based on various secrets they possess.

Which effectively meant, it a competitor saw our system at work, copied it and patented it we'd probably be willing to pay them a license fee just to get off our backs - shocking, but probably the case.

So generous, maybe you should copy your product's source code tree to a usb drive and hand it over to your competitors to save them the trouble.

As for Microsoft and Zynga, they're both standing on the shoulders of giants

Read MS-DOS' history. You'll find that MS bought Q-DOS (aka 86-DOS) which was created by Paterson. According to DR-DOS creator, Kildall, Paterson pretty much cloned the entire interface of CP/M to create Q-DOS. The lack of software patents at the time meant he could legally do this. Back then microprocessors were rare and software for them rarer. Do you want to remove s/w patents and promote this type of lawlessness?

Yes because the same process that allowed qdos to rip off cpm also allowed the BSD's minix Linux sun and more to reimpliment AT&T Unix which in turn had reimplemented many things from Multics

Software is not inventing math... just using it similar to how every field in engineering uses math. Pop open any vhdl or verilog book -- it looks like ada/pascal and C respectively. And yes, this software-like code that looks like algebraic formulas is used to create electronic circuits. The circuits and the code are patentable. So why can't software be patented? Stop repeating the same nonsense thousands of times that "Software is math!" It's not, it's technology.

I should add, the only people who think patents should be abolished are people who don't create anything.

It only takes a single example to reveal how untrue that statement is. To say that no authors can disagree with you is incredibly arrogant.

It's also a mere ad hominem, so it's not even logical. Even if someone doesn't "create" anything, that doesn't make their arguments wrong.

Anyone who creates has a different opinion.

Well, how nice of you to decide what everyone else thinks. I'm a software developer and 100% against patents. Am I not a "creator"? Are you going to resort to a No True Scotsman now?

but ranting around about getting rid of them just makes you look ignorant.

I rant about getting rid of them because I value real private property rights (the ability to use your own resources to accomplish some goal, which at present may infringe upon some patent) over monopolies over procedures enforced by worthless government thugs.

I should add, no human being disagrees with me. If you disagree, you're not a True Human.

What I would or would not believe if I were in a different situation than I am now is completely irrelevant to whether or not my arguments or beliefs are valid. It is also not a surprise that humans would suddenly change positions when it suits them; they're only looking out for their themselves. I don't think I'd do such a thing, but doing so would not make someone's previous beliefs wrong. And it would be copying, not stealing.

Since you're using such blatantly illogical 'arguments', I'll say that yes, you

I've waffled between being against them or pushing for reform; currently, I'm against them. Here's why:1. If you're being trolled, they're bad.2. If you're a troll, you're not creating anything other than lawsuits.3. If you created something and are small business (don't retain an in-house lawyer or thirty), you can't afford to defend your patent anyway -- its only value is to be part of a portfolio to boost your value if you sell out to someone with lots of money (here, your invention isn't what's valued, but your patent and its war chest strength).4. If you created something and are a big business, you have the choice of being mired in the current patent sinkhole, or competing purely on how mobile your company is -- innovation and all that, which is what patents were supposed to supprot.

So any way you look at it, the current system is bad. I'm starting to think that it has got to the point where it is almost totally detrimental.

Note that I'm talking about the patent system as it pertains to software patents, not physical inventions. THAT patent system just needs reform.

And yes, I'm a creator in many fields, and even have my name on a patent or two.

innovation and all that, which is what patents were supposed to support.

I don't think that's the case. Patents were supposed to motivate people to reveal their trade secrets
by creating a way they could generate income from licensing them after the revelation. I think applying
a "who cares if they keep the method a secret" test to requests for software patents would solve a
lot of what's wrong with the current situation.

I think applying a "who cares if they keep the method a secret" test to requests for software patents would solve a lot of what's wrong with the current situation.

This is an interesting standard because the biggest reason I can see for people not to care if they keep it secret is because there's numerous other groups coming out with nearly identical solutions - to me this means that the potential patent fails the 'non-obvious' test. Otherwise there's things like it's already been used in the past, etc...

To me, the biggest patents I hate is where they go 'standard practic on a computer' or 'something we've done on computers for ages, but now we're doing it on a table

Absolute nonsense. Patents were supposed to 'promote the progress' of 'the useful arts.' Trade secrets had nothing to do with that because nobody who could practice something secretly indefinitely would bother getting a patent, which is costly and expires. If the goal was to reduce the usage of trade secrets, the first step would be to weaken trade secret law, but nobody ever brings that to the table because patents very little to do with trade secrets for proponents or opponents.

The purpose of patents were to offer a government enforced monopoly for a specific period of time, and to compensate the public for the costs and effort of the enforcement, the patented method had to be described in sufficient detail to allow those skilled in the arts to reproduce the method. Today the purpose seems to have been corupted, but that is what it was. My opinion is most software patents are both insufficently unique and insufficently described to deserve patent protection; and what protection th

So... not to say I support the system, because I don't (although my solution is more intermediate than yours: software patents have a lifetime reduced to something like 4-5 years), I'm going to have to disagree with your #2 claim.

Patent trolls ("non-practicing entities" or "non-producing entities" or whatever - that is, companies who buy spend money to buy patents and to pay lawyers, and make money getting settlements or winning lawsuits) do create something other than lawsuits. They create a market for pat

So any way you look at it, the current system is bad. I'm starting to think that it has got to the point where it is almost totally detrimental.

No, any way that YOU look at it the system is bad. For those of us who invent things that we actually own the rights to and who intend to defend those rights there are always ways to make it happen. If you can't find an attorney to litigate your patent, then you either did a bad job patenting it, you patented something worthless, or you haven't exhausted your options.

OK, you're right; there are numerous ways to look at the current system and argue it is good. Very few of those ways create a system that is good for the public at large though. I invent things I actually own the rights to, but have not bothered patenting any of them. Why? They're in software, and I think software patents are patently silly. I make money by providing service, which involves creating things. Why spend time and money on litigation when I could spend it creating? All my patents are phys

> I should add, the only people who think patents should be abolished are people who don't create anything.

Nope. Someone that creates realizes how derivative everything is. Someone that creates has half a clue. So they know how much bullshit goes on in patents. They realize how much stuff is simply average practitioners applying mundane methods.

If all it takes for reverse engineering is a working example or a simple description then you simply don't have a novel invention. You have something that could b

I should add, the only people who think patents should be abolished are people who don't create anything.

Anyone who creates has a different opinion. I don't agree with current patent law and the situation, but ranting around about getting rid of them just makes you look ignorant.

I have personally known software developers with multiple patents to their name who thought patents only rarely made sense. Their employer foot the bill, obviously. In fact, they argued the patents were so worthless and confusing that they had trouble understanding half the patents that were based on their own work.

I'm skeptical of patents on inventions made of steel, and of gears. Almost anything that can be done with a machine made of steel could also be done manually. Therefore you can't patent a new invention that does the job in a new way.

Gears aren't a new a new invention, therefore a new invention can't be made with gears. Besides, gears just multiply force. Since you can't patent the basic concept ofmultiplication, that means you can't patent an invention that USES multiplication. Gears do multiplication, so

I should add, the only people who think patents should be abolished are people who don't create anything.

Anyone who creates has a different opinion. I don't agree with current patent law and the situation, but ranting around about getting rid of them just makes you look ignorant.

No, I create stuff all the time and I think patents are a big problem. The stuff I create probably falls into 2 categories:1. Stuff that someone else has already patented. And by that I mean I developed it on my own without knowledge of the existing patent, but someone somewhere probably already patented it. Patents are supposed to be novel enough that this should almost never happen, but we all know many modern patents are complete trash and a trained chimp could've come up with the same solution.2. Stu

Let's say that I also spent years of my life creating something awesome, only to discover that you independently had the same idea and managed to get a patent on it before I did. You then sue me for patent infringement, despite the fact that I was completely unaware of your work. In fact, it is possible that you never even produced a product based on your patent.

This is by far the more common case than what you describe.

Which commonly happens, though if you can show you did arrive at the same result without a very technical means, the patent may be discarded and the idea deemed "obvious"

> Which commonly happens, though if you can show you did arrive at the same result without a very technical means, the patent may be discarded and the idea deemed "obvious"

Only after a great deal of wasted time, money, and effort that should never have to be expended in the first place. Piss poor quality of patent examiners is a very real cost that is a burden on the rest of the industry. Abuse of the patent system is far more harmful to innovation than the idea that someone might copy and improve your p

That would spur innovation and business far more than upholding them could.

I doubt the authors of the constitution ever foresaw the risk of patent trolling.

Patent law is in Article I, Section 8 and is the exclusive domain of Congress. While SCOTUS can interpret the statute - "oh, when Congress said 'whoever invents or discovers any new and useful process,' they didn't mean that to include natural laws since they're not really 'new', but just 'heretofore unknown'" - they can't rewrite it. If software patents should be completely eliminated, then Congress should amend the statute to explicitly exclude them.

It is their job to settle disputes between the federal circuit judges. With this case went before 10 judges their was 7 different opinions. No majority opinion. They could not find 6 judges who could agree what the law was. No one has any clue what Congress meant by process. So they sort of don't have a choice but to interpret the statute.

It is their job to settle disputes between the federal circuit judges. With this case went before 10 judges their was 7 different opinions. No majority opinion. They could not find 6 judges who could agree what the law was. No one has any clue what Congress meant by process. So they sort of don't have a choice but to interpret the statute.

Sure, they have to interpret "process", but they can't just say "software processes aren't processes". Like business methods - Congress updated the Patent Act in 2011 and made some changes to the infringement defenses for business method patents. Well, that kinda implies that Congress thought that business method patents should exist: they don't write laws for how to regulate unicorns. Same thing with software - people have been patenting software for 30 years and the Patent Act has been updated three times

The law they wrote made it easier for business method patents to be thrown out and challenged in court. They had the oppurtunity to overule SCOTUS and get rid of Bilski. Instead they made it easier for Bilski to used. That kinda implies the opposite.

The law they wrote made it easier for business method patents to be thrown out and challenged in court. They had the oppurtunity to overule SCOTUS and get rid of Bilski. Instead they made it easier for Bilski to used. That kinda implies the opposite.

No, it implies that they intended for business methods patents to exist generally, but that low quality ones should be invalidated. Certainly, it makes no sense to have a process for challenging them if you were just going to wipe them all out with a single amendment. It'd be like Congress writing a procedure for you to protest how your neighbor is storing their nuclear weapons: adding such a procedure makes no sense since they aren't allowed to have them, period.

The big problem with "software patents" (and yes, I've got 'em too) is that they're too conceptual. A patent was supposed to be a complete description for how to perform an action. These days you can effectively get patents on the actions themselves - as if instead of patenting a superior type of cotton gin, you could actually patent the idea that a machine could separate cotton fibers from seeds. You don't even need to build such a machine, just to posit that it could exist and might be built with metal

Why should the average software engineer need to be "industrious" enough to know how the patent system works? That's just asinine. That right there is the perfect argument against your love of the patent system.

The only rightful metric of whether or not to revise a system or to abolish it is the relative benefits of either option. None of this rhetorical nonsense you are trying to spout is remotely relevant.

Who is the best arguer? Who is the best detective? Who is the best doctor? Who is the best programmer? The very nature of being a knowledge worker is that if you are the best you can get your way in spite of reality.

Actually, I thought everything in our court system boiled down to "who has the best lawyer".

To a certain degree, yes. Perhaps a more relevant term would be "competent". In incompetent lawyer can doom you no matter how strong your arguments, research findings and other evidence.

At the SCOTUS level not every law firm is capable of pleading a case. If you haven't done your homework your case can be thrown back in your face with instructions to clarify your argument or how Constitutional Law relates to your cause.

The US Constitution is great reading. Fortunately, there's not a copyright on it so y

The biggest problem here isn't the question of software patents. It's patents on things that are obvious, or are an obvious progression from something that's already common (eg. taking the manual process of balancing a checkbook and having a computer perform the exact same steps). It's just that software is the field where it's taken root the most, I think because people treat computers as some sort of magic that transforms the ordinary into something extraordinary.

The most straightforward way to deal with it might be to take computers out of the picture. Start by asking the question "If we replaced the computer with a trained monkey who could slavishly follow instructions, would this be patentable?". If the answer is "Yes.", then the patent's valid. If the answer's "No.", then the burden should be on the patent-holder to explain why the application of a computer to this problem is so non-intuitive, so non-obvious, that someone familiar with the problem and computers would not think of letting a computer handle the chore. And "Because nobody's done it before." is not a valid response. Someone always has to be the first one to try to solve a problem. Counter-intuitively, the patent-holder should have to show that they were not the first, that doing this was so non-obvious that there's a large number of other people who knew what they were doing who tried this and could not figure it out. That the first person to try it immediately found this solution should be considered support for the idea that this was an obvious solution and thus not eligible for patent. That is, after all, almost the dictionary definition of "obvious": the first thing you think to try when faced with a problem?

The biggest problem here isn't the question of software patents. It's patents on things that are obvious, or are an obvious progression from something that's already common (eg. taking the manual process of balancing a checkbook and having a computer perform the exact same steps). It's just that software is the field where it's taken root the most, I think because people treat computers as some sort of magic that transforms the ordinary into something extraordinary.

The most straightforward way to deal with it might be to take computers out of the picture. Start by asking the question "If we replaced the computer with a trained monkey who could slavishly follow instructions, would this be patentable?". If the answer is "Yes.", then the patent's valid. If the answer's "No.", then the burden should be on the patent-holder to explain why the application of a computer to this problem is so non-intuitive, so non-obvious, that someone familiar with the problem and computers would not think of letting a computer handle the chore. And "Because nobody's done it before." is not a valid response. Someone always has to be the first one to try to solve a problem.

Sure, but that's not the question being asked. Specifically, there are three relevant statutes here:
35 USC 101 states that processes, machines, compositions of matter, and articles of manufacture are patent eligible, provided that the claimed invention meets the other requirements.
35 USC 102 states that the claimed invention must be new - i.e. "nobody's done it before."
35 USC 103 states that the claimed invention must be nonobvious - i.e "so non-intuitive, so non-obvious, that someone familiar with the problem" would not come up with the solution.

But these are three different statutes, with different tests. 102 and 103 require prior art evidence - "is this new? What about this, where it was done exactly that way last year?"; or "isn't this obvious because it's just a combination of two known things that, even though they haven't been done together before, they'd be trivial to combine?"

The test for 101, however, is the issue here, and there really isn't a good test. Specifically, the fight is over what it means for a "process" to fit within the patent eligible range: say you actually solve the black hole information paradox and write an application claiming a method for retrieving information from a black hole. It's certainly never been done before, and I doubt anyone would call it obvious... but is it patent eligible? No, under the current understanding, because it's directed to a natural phenomenon.

See, novelty and obviousness are different questions. This is just about that strange first one, where something can be absolutely non-intuitive and genius, but not eligible, like Einstein's general relativity; or something can be in the field of patent eligible subject matter - like a process for putting butter on toast - but be totally old and well known and invalid under 102.

Now, that doesn't mean we throw our hands up and say "patent trolls win". It's just that 101 isn't the right tool to defeat them. If they're claiming something that's already common "but on a computer", well - computers are well known, the checkbook balancing is well known... first, we should be able to show that they've been done together before and therefore it's invalid under 102. Second, even if we can't, since both are well known, and combining them is trivial, then the combination is obvious under 103.
See, there's no need to make a grand sweeping rule that all software is forever ineligible, regardless of how revolutionary and world-changing it is... instead, we just want to get rid of stupid obvious patents, so let's start focusing on when things are stupid and obvious, not just whether they're done on a computer or not.

It seems to be common in software patents to try and claim not just a method of doing X, but the whole *concept* of doing X.

So for instance, the *concept* of doing rubber-band bounce-back. Apple has a patent on this. (http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7479949.PN.&OS=PN/7479949&RS=PN/7479949)

To me this smacks of patenting an idea, rather than a specific way of implementing an

It seems to be common in software patents to try and claim not just a method of doing X, but the whole *concept* of doing X.

So for instance, the *concept* of doing rubber-band bounce-back. Apple has a patent on this. (http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7479949.PN.&OS=PN/7479949&RS=PN/7479949)

To me this smacks of patenting an idea, rather than a specific way of implementing an idea.

That one's not the rubber-band patent, nor is it just a concept... They claimed:

11. A computer-implemented method, comprising:
at a computing device with a touch screen display, detecting one or more finger contacts with the touch screen display;
applying one or more heuristics to the one or more finger contacts to determine a command for the device; and
processing the command;
wherein the one or more heuristics comprise:
a vertical screen scrolling heuristic for determining that the one or more finger contacts correspond to a one-dimensional vertical screen scrolling command rather than a two-dimensional screen translation command based on an angle of initial movement of a finger contact with respect to the touch screen display;
a two-dimensional screen translation heuristic for determining that the one or more finger contacts correspond to the two-dimensional screen translation command rather than the one-dimensional vertical screen scrolling command based on the angle of initial movement of the finger contact with respect to the touch screen display; and
a next item heuristic for determining that the one or more finger contacts correspond to a command to transition from displaying a respective item in a set of items to displaying a next item in the set of items.

Which seems to be rules for determine whether you're scrolling, dragging, or flipping apps/tabs.

That's still massively vague and far-reaching. They should be able to patent the specific heuristics themselves. They should not be able to patent the idea of using heuristics to figure out what to do.

Its like patenting the cotton gin as follows:

11. A mechanically-implemented method, comprising:one or more lengths of iron or other metal commonly used in the field of production to separate the fibers of the cotton from their seeds;applying motion to various parts of the machine to determine which portions of the cotton are fibers;inputting energy into the system in order to achieve separation of fibers;a grading to determine when sufficient fibers have been separated; anda mechanism for disposing of the seeds and resetting the device.

Without specifics, they're still describing the idea of a rubber-band display. You could build one using all of your own formulae for behavior and appearance, and you'd still be in violation of their patent.

That's still massively vague and far-reaching. They should be able to patent the specific heuristics themselves. They should not be able to patent the idea of using heuristics to figure out what to do.

Its like patenting the cotton gin as follows:

11. A mechanically-implemented method, comprising:
one or more lengths of iron or other metal commonly used in the field of production to separate the fibers of the cotton from their seeds;
applying motion to various parts of the machine to determine which portions of the cotton are fibers;
inputting energy into the system in order to achieve separation of fibers;
a grading to determine when sufficient fibers have been separated; and
a mechanism for disposing of the seeds and resetting the device.

Without specifics, they're still describing the idea of a rubber-band display. You could build one using all of your own formulae for behavior and appearance, and you'd still be in violation of their patent.

And, if you were the first person to ever separate cotton fibers or create intuitive user interfaces, wouldn't that be reasonable? Isn't the bigger issue here the fact that it may be not new or obvious to do, rather than just that it's an idea?

Which seems to be rules for determine whether you're scrolling, dragging, or flipping apps/tabs.

Forgot that bit - again, they're not describing the rules that they use (which is the whole idea of a patent - you publish what would otherwise be your trade secrets and in exchange you get government protection against anyone copying them without paying you for a small amount of time), they're describing the idea that there could be rules to determine whether you're scrolling, dragging, or flipping apps/tabs.

Can we also start focusing on "description sufficient for someone skilled in the art to duplicate the invention"? I think that would also take a bite out of vagueness. "I built that according to your instructions and it doesn't do that other stuff at all."

Can we also start focusing on "description sufficient for someone skilled in the art to duplicate the invention"? I think that would also take a bite out of vagueness. "I built that according to your instructions and it doesn't do that other stuff at all."

Hell, yeah. "I have no idea what you're even trying to describe" is a serious problem, and good grounds for invalidation.

But "obviousness" is too fuzzy a concept. Even outside of software it has proved problematic, such as when existing technologies are combined to get something new.

For example, resistor-based charge-and-uncharge technology had been around since the early 50's if I am not mistaking. However, in the early 1960's somebody used it to implement intermittent windshield wipers. Before that, mechanical means were used to implement them. Back then it was considered fairly novel. Patent lawsuits broke out.

But "obviousness" is too fuzzy a concept... One way to measure "obvious" is a panel of experts. But what if none of the "experts" know about the new "kits" on the block such as solid-state electronics or web standards?

In practice, it's not that fuzzy: the current test for obviousness used by the courts and the patent office relies on the existence of prior art to avoid hindsight. It also avoids the problem of having a panel of "experts" that you have to keep sequestered... and therefore who would fall behind the state of the art and would shortly not be experts anymore. Specifically, the test is whether one or more pieces of prior art, alone or in combination, teach or suggest each and every element of the claimed invent

The biggest problem here isn't the question of software patents. It's patents on things that are obvious, or are an obvious progression from something that's already common (eg. taking the manual process of balancing a checkbook and having a computer perform the exact same steps). It's just that software is the field where it's taken root the most, I think because people treat computers as some sort of magic that transforms the ordinary into something extraordinary.

Actually, you know, in the 19th century, the patent lawsuits were flying even more vigorously than they are now. In fact, in the field, it got so bad that it was impossible to create the device.

No, it wasn't a matter of licensing, but a matter that you couldn't build it because the patents were so broad and even worse, they overlapped! And no one was licensing to competitors, so everyone was suing everyone else. And yes, we had NPEs (non-practicing entities, aka trolls) as well.

The device? The sewing machine. Everyone was suing everyone else, and patents were granted that were overlapping. So if you managed to license one, someone else with the exact same thing would sue you. Heck, the only real difference was back then, the inventors held onto their patents and did a lot of the suing.

The end of the 19th century nearly brought a halt to the sewing machine. Until the companies got together and simply bought up every patent around from everyone. Literally buying the peace.

The article suggests that the justices are wavering because there are reservations about the repercussion of their decisions on existing software companies. The issue I have with that is that they should NOT be decided based on the repercussions. Their decision should be made as a matter of law.

While I agree that their ultimate decision should only be made based on the law, that doesn't mean that they shouldn't think about all the ramifications of their decision. If they choose one course of action that follows the law despite those ramifications, it shows they considered all sides of the argument in full.

Personally, I think the only companies that will really be hurt if they decide to throw out software patents are law firms. These guys are spending way too much money trying to litigate each

CHIEF JUSTICE ROBERTS: Well, but I mean,
you know, it in different directions. And I
understand him to say that in each of those places,
that's where the computer is needed.

MR. PERRY: Mr. Chief Justice, Figure 16 has
nothing to do with the invention asserted against my
client in this case. There are two inventions in this
patent. One invention involving multilateral contract
formation is not asserted against my client. And all of
these drawings pertain to that. The only drawings that
pertain to the asserted claims are 25 and 33 to 37. And
that was established below, and it's established in this
Court. And Mr. Phillips has never disputed it.
So the claim he's pointed the Court the
figure he's pointed the Court to has nothing to do with
the invention. It's for a different invention that is
not at issue in this case.

If I were to write in a paper in medicine and try to get it published in one of the various medical journals that are out there that have a reasonably good reputation, I would be rejected so quickly if I were to try a "Algorithm for using instruments in surgery, nurse hands over knives handle first" journal article. But the equivalent of this level of obviousness make it through the patent office all the time. Software I have worked on has gotten patents more than once. In all cases, I thought the patents obvious to the point of silliness.

When I was younger, I naively believed that patents demonstrated that the inventor was truly clever and original -- the lightbulb, invention of jet engine, silicon chip, and so on. Now, what I see is a world filled with patents that are a waste of everybody's time and those few who actually truly invent something new are no longer getting the positive rep that used to come with filing a patent.

The solution is simple. You make the patent filer pay a few thousand dollars, you use that money to pay "world class experts in the field" and then you ask the experts, is the invention truly original and of significant value -- so much so that keeping the details of the invention secret would actively harm mankind?

If the patent isn't worth paying a few thousand dollars to file, then why should we even be considering it.

"If I were to write in a paper in medicine and try to get it published in one of the various medical journals that are out there that have a reasonably good reputation, I would be rejected so quickly if I were to try a "Algorithm for using instruments in surgery, nurse hands over knives handle first" journal article."

Well... there are good journals and then there are publish-anything journals. Sadly, I've been in some faculty meetings where the thesis has been, "anything you write can get published somewher

I'm skeptical of patents on inventions made of steel, and of gears. Almost anything that can be done with a machine made of steel could also be done manually. Therefore you can't patent a new invention that does the job in a new way.

Gears aren't a new a new invention, therefore a new invention can't be made with gears. Besides, gears just multiply force. Since you can't patent the basic concept ofmultiplication, that means you can't patent an invention that USES multiplication. Gears do multiplication, so

First, software exists outside the physical world. Every piece of software is an algorithm, and algorithms are pure math, and pure math, by very long-standing precedent, isn't patentable. Hence, the argument goes, software isn't patentable, because doing so is equivalent to patenting the pure math behind it.

Second, the real reason software shouldn't be patentable is because of all the policy reasons given in this discussion. They just cause more trouble than they're worth. The "software is m

A computer is like a printing press which in itself is a patentable piece of technology but the plates it prints (running programs) are only subject to copyright rather than patent protection. This goes to show how technologically incompetent SCOTUS is.